Dahlia Lithwick wrote a brilliant article on A Brilliant Ruling that appeared in Slate on Wednesday, in which she reports on some of the facts and opinions that were expressed by witnesses for the plaintiffs (two same-sex couples) and the defense (the state of California and opponents of same-sex marriage) in the U.S. District Court case. After noting the likelihood of an appeal of the ruling proceeding all the way up to the Supreme Court, the carefully crafted 15 citations to 2 Supreme Court decisions written by Justice Anthony Kennedy, and commenting on the imbalance in preparation and presentation of expert testimony between the two sides in the trial, she highlights some specific findings articulated by Judge Walker that I find difficult to dispute (and I hope that Justice Kennedy and his colleagues will encounter similar difficulties in disputing the findings):

Then come the elaborate "findings of fact"—and recall that appellate courts must defer far more to a judge's findings of fact than conclusions of law. Here is where Judge Walker knits together the trial evidence, to the data, to the nerves at the very base of Justice Kennedy's brain. Among his most notable determinations of fact, Walker finds: states have long discriminated in matters of who can marry; marital status affects immigration, citizenship, tax policy, property and inheritance rules, and benefits programs; that individuals do not choose their own sexual orientation; California law encourages gay couples to become parents; domestic partnership is a second-class legal status; permitting same-sex couples to marry does not affect the number of opposite-sex couples who marry, divorce, cohabit, or otherwise screw around. He found that it benefits the children of gay parents to have them be married and that the gender of a child's parent is not a factor in a child's adjustment. He found that Prop 8 puts the force of law behind a social stigma and that the entirety of the Prop 8 campaign relied on instilling fears that children exposed to the concept of same-sex marriage may become gay. (Brand-new data show that the needle only really moved in favor of the Prop 8 camp when parents of young children came out in force against gay marriage in the 11th hour of the campaign.) He found that stereotypes targeting gays and lesbians have resulted in terrible disadvantages for them and that the Prop 8 campaign traded on those stereotypes.

Here are some particularly poignant passages regarding Blankenhorn's testimony, which the court concluded constitutes "inadmissible opinion testimony that should be given essentially no weight" (with a few links to items referenced directly or indirectly inserted):

During trial, Blankenhorn was presented with a study that posed an empirical question whether permitting marriage or civil unions for same-sex couples would lead to the manifestations Blankenhorn described as indicative of deinstitutionalization. After reviewing and analyzing available evidence, the study concludes that “laws permitting same-sex marriage or civil unions have no adverse effect on marriage, divorce, and abortion rates, the percent of children born out of wedlock, or the percent of households with children under 18 headed by women.” PX2898 (Laura Langbein & Mark A Yost, Jr, Same-Sex Marriage and Negative Externalities, 90 Soc Sci Q 2 (June 2009) at 305-306). Blankenhorn had not seen the study before trial and was thus unfamiliar with its methods and conclusions. Nevertheless, Blankenhorn dismissed the study and its results, reasoning that its authors “think that [the conclusion is] so self-evident that anybody who has an opposing point of view is not a rational person.”

I added emphasis to the last sentence, as to highlight the irony of one purported expert summarily dismissing the work of other purported experts while accusing them of, in effect, summarily dismissing other points of view that differ from their own ... reminding me of another article I read recently about a study that suggests what you say about others says a lot about you. Judge Walker similalry noted that Blankenhorn "failed to consider evidence contrary to his view in presenting his testimony".

In my reading of the case, it appears that Blankenhorn, if anything, offered testimony that tended to support the claims of the plaintiffs (the same-sex couples), against which he had been invited to testify:

Blankenhorn’s concern that same-sex marriage poses a threat to the institution of marriage is further undermined by his testimony that same-sex marriage and opposite-sex marriage operate almost identically. During cross-examination, Blankenhorn was shown a report produced by his Institute in 2000 explaining the six dimensions of marriage: (1) legal contract; (2) financial partnership; (3) sacred promise; (4) sexual union; (5) personal bond; and (6) family-making bond. PX2879 (Coalition for Marriage, Family and Couples Education, et al, The Marriage Movement: A Statement of Principles (Institute for American Values 2000)). Blankenhorn agreed that same-sex marriages and opposite-sex marriages would be identical across these six dimensions. Tr 2913:8-2916:18. When referring to the sixth dimension, a family-making bond, Blankenhorn agreed that same-sex couples could “raise” children. Tr 2916:17.

Blankenhorn testified on cross-examination that studies show children of adoptive parents do as well or better than children of biological parents [possibly referring to Farr, R. H., Forssell, S. L., & Patterson, C. J. (2010). Parenting and child development in adoptive families: Does parental sexual orientation matter? Applied Developmental Science, 10, 164-178]. Tr 2794:12-2795:5. Blankenhorn agreed that children raised by same-sex couples would benefit if their parents were permitted to marry. Tr 2803:6-15. Blankenhorn also testified he wrote and agrees with the statement “I believe that today the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were the day before.” DIX0956 at 2; Tr 2805:6-2806:1.

Blankenhorn stated he opposes marriage for same-sex couples because it will weaken the institution of marriage, despite his recognition that at least thirteen positive consequences would flow from state recognition of marriage for same-sex couples, including: (1) by increasing the number of married couples who might be interested in adoption and foster care, same-sex marriage might well lead to fewer children growing up in state institutions and more children growing up in loving adoptive and foster families; and (2) same-sex marriage would signify greater social acceptance of homosexual love and the worth and validity of same-sex intimate relationships. Tr 2839:16-2842:25; 2847:1-2848:3; DIX0956 at 203-205.

there is simply no other way to view the age-old, universal institution of marriage than as rooted in the biological family

Also consistent with the conduct of her colleague, she makes claims without offering much scientific evidence; and while I don't mean to imply that a newspaper opinion article ought to have the exact same standards as courtroom testimony, I do believe that opinions with factual corroboration generally carry more weight ... at least among those who care about facts.

In this case, Mack claims that "there is a great deal of social-science evidence connecting marriage and the active engagement of two biological parents with child well-being", and yet only makes reference to a single statement made by anthropologist Bronislaw Molinowski without any reference to supporting studies he or others may have conducted.

I would argue that, as was the case with her colleague, she raises issues that may unintentionally serve to further support the plaintiff's case. After suggesting that the institution of marriage's "common denominator across time and cultures has been its dedication to the offices of reproduction", she goes on to report that "A recent Pew analysis of 2008 census data showed that only just over 40% of Americans consider children fundamental to marriage", a decline from 65% who expressed that view in 1990. I believe she quotes this statistic to bolster her and Blankenthorn's supposition that marriage is being "de-institutionalized"; in my reading, it suggests that the institution of marriage is being progressively re-defined rather than being undermined.

The report I believe she is referring to, Childlessness Up Among All Women; Down Among Women with Advanced Degrees, shows that the proportion of all women who end their childbearing years without bearing children has risen from 10% in 1976 to 18% in 2008; among women who have ever been married, that rate is 13%. If procreation is an essential element of a "successful" or "legal" marriage, I don't know how Mack, Blankenhorn and other opponents of same-sex marriage regard childless marriages, but I have several married friends who are childless - or childfree - by choice, and I don't believe that they see their marriages as any less legitimate than childful marriages. I certainly don't, nor do I see same-sex marriages as any less legitimate than heterosexual marriages ... and I hope the growing preponderence of facts supporting the positive aspects of same-sex marriages will help influence more opinions so that we can move beyond this controversy and devote more attention to other social, economic and political problems in dire need of resolution.

Update: Just found the full text of the ruling on Scribd; embedding below: